A review of the Ban the Box movement & your hiring process, state-compliant job applications & criminal background checks.

1. Presented by
Jaime Lizotte
HR Solutions Manager
Shanna Wall, Esq.
Compliance Attorney
With Special Guest

2. Welcome! Before we get started …
 Use the chat box on the left to ask questions
 If you are having audio trouble, please message us in the
chat box, and we will do our best to assist you

3.  History and overview of ban the box legislation
 Pay equity laws and job applications
 EEOC guidance beyond state and local anti-discrimination laws
 Additional mandatory language with state job applications
 Best practices for fair hiring and reduced risk with questionable
candidates

4. Are you fully informed about
“ban the box” requirements affecting your
hiring locations?

6.  Refers to criminal history question on job applications:
 Have you ever been convicted of a crime?  YES  NO
 Question now banned in 24 states and more than 150
cities and counties
 Several large retailers also have adopted these
practices

7.  Hawaii first state; Philadelphia first city
 Activist group coined “ban the box” phrase in early
2000s
 Now a common reference to any criminal history
restrictions

8.  Helps reduce barriers for individuals with a criminal arrest or
conviction seeking employment
 1 in 3 American adults has a criminal arrest or conviction
 Originally only applied to public employers, now spreading to
private employers
 Growing quickly to include more states

10.  Not required to hire those with a criminal record
 Still can conduct legal background checks
 Delay criminal history inquiry until later in the hiring process:
 Interview (check state law)
 Job offer

11.  Background checks still required for:
 Law enforcement agencies
 Financial institutions
 School districts
 Child care
 Jobs involving the disabled, elderly or vulnerable

12.  Case-by-case basis
 Consider:
1. Time since the conviction
2. Nature of the offense
3. Nature of the job
4. Any criminal history restrictions
 Must have a clear connection why criminal record
makes the applicant unfit for the job

13.  Allow applicant an opportunity to explain facts and
circumstances
 Background checks may contain inaccuracies or errors
 Before rejecting any candidates, give them notice and
a copy of their report
 Follow the Fair Credit Reporting Act, and any state
and/or local requirements

15.  Refers to the salary history question on job applications
 “What is your starting/ending rate of pay?”
 MA first state to set law prohibiting salary question,
effective January 1, 2018
 NY – law for public employers is the most recent
enactment
 Philadelphia is the first city to prohibit salary question

16.  Pay equity law falls under FLSA
 Equal Pay Act of 1963 – equal pay for equal work
 Created to abolish wage disparity based on gender
 Required for employers to comply
 Doesn’t require salary transparency
 Gives employers too much leeway
 Eliminating salary history question forces employers to
comply

17.  Levels the “salary” playing field between men and women in
the workforce
 More states expected to follow suit as push for equal pay
takes off
 Texas and New Jersey have introduced proposed legislation
 Over 15 other states and/or cities currently have similar bills
pending
 May not prohibit salary question, but forces employers to
provide “equal pay for equal work”

18. How do you maintain compliance
with hiring regulations?

20.  Issued a 2012 notice that criminal records can create the potential
for hiring discrimination
 “Disparate impact”: Blacks and Latinos are arrested at a rate 2
to 3 times their proportion to the general population
 Use caution, regardless of existing state or city ban the box laws
 Never refuse a candidate just because of a criminal conviction
unless job-related or safety concern

21.  Issued a November 2016 notice on enforcement guidance on
national origin discrimination
 Employers MUST not treat candidates differently during hiring
process
 Employers cannot rely on discriminatory preferences of
coworkers, customers or clients

23.  Use a job application that abides by your state-specific laws
 Especially regarding criminal history questions
 Salary history question
 Volunteer work information
 Include other legal disclosures and questions to safeguard your
business

24.  Special language may be necessary:
 Smoking
 Lie detector test
 Volunteer work
 Driver’s license
 Social Security number
 Multiple disclosure requirements for some states

25. Sample Legal Disclosure:
Notice to Maryland applicants: UNDER MARYLAND LAW, AN EMPLOYER
MAY NOT REQUIRE OR DEMAND, AS A CONDITION OF EMPLOYMENT,
PROSPECTIVE EMPLOYMENT, OR CONTINUED EMPLOYMENT, THAT AN
INDIVIDUAL SUBMIT TO OR TAKE A LIE DETECTOR OR SIMILAR TEST. AN
EMPLOYER WHO VIOLATES THIS LAW IS GUILTY OF A MISDEMEANOR AND
SUBJECT TO A FINE NOT EXCEEDING $100.

26. How confident are you that your
hiring practices are compliant with
state and local laws?

28. DO’s:
 Include state-specific protected classes
 Include confidentiality clause
 Include ADA reasonable accommodation clause
 Use state-specific attorney approved job applications
 Treat all applicants the same
DON’TS:
 Ask for candidates SSN on the job application
 Ask questions that reveal the applicant’s age
 Ask questions that reveal the applicant’s membership in a protected
class

29.  Ban the box legislation is growing for both public and private
employers
 Pay equity laws are on the rise and seem to be the new trend
 Check with the EEOC for any guidance regarding hiring laws
 Use state-specific job applications
 Protect yourself by following best practices for fair hiring

30.  Attorney-written and –approved
 Includes appropriately worded criminal history
question (where legally permitted)
 Includes ADA reasonable accommodation
language
 Includes confidentiality statements
 Applies best practices for fair hiring

32. Watch the recording of this webinar here. Connect With Us
@ComplyRight
@ComplyRight
ComplyRight,Inc.
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